Martha Meijer

Human Rights Advisor

 

August 2011 

 

Contents

 

 

This background paper was meant as basic information for a workshop commissioned by SADEV (Swedish Agency for Development Evaluation) on 17 and 18 August 2011. It deals with definitions and context of human rights, different ways they are to be implemented and how they are used in international relations. This paper has been written by ©Martha Meijer, Human Rights Advisor, info@marthameijer.org, August 2011. It may freely be quoted, with reference to the author and this website.

In 1945, the international community organised itself in the United Nations and identified as its main objectives:

·         Peace and security

·         Poverty alleviation

·         Respect for human rights

For each of these objectives there is a special Council that handles problems, develops policies and agrees on resolutions in their respective fields. The Security Council is concerned with questions of war and peace, international and widespread internal conflicts. The Economic and Social Council (ECOSOC) is devoted to economic and social welfare and the way international relations can be supportive of poverty alleviation. Finally the Human Rights Council (established in 2006, from a lower scaled and politicized Human Rights Commission under ECOSOC) deals with questions of human rights and discusses the national performance of states in the Universal Periodic Review.

Important decisions by the Human Rights Council (HRC) have to be approved and adopted by the General Assembly of the United Nations (UNGA). Human Rights Treaties, Covenants or Conventions are adopted by the General Assembly first and States Parties can sign and then ratify them. With their ratification, governments “promise” to comply with the contents of such a Treaty. Many Treaties have a Treaty Body, a Committee of Experts that monitors and comments on the reports that States Parties have to submit every two or four years.

In order to define human rights as a legal basis for a life in dignity, for each and every individual, we have a quote from the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) that describes the perspectives and limitations in not too legal terminology.

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law.

International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations.

All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.

Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: All human beings are born free and equal in dignity and rights.”[1]

 

The different conventions each have their own focus and conditions. The basis is the Universal Declaration of Human Rights, which has been adopted in 1948. It is a Declaration in the real (limited) sense of the word: it is full of good intentions. Over the years, as states made their entry in the United Nations and had to endorse (not sign or ratify) the 29 article list of principles, it has gained importance and moral weight. Several principles have been elaborated in separate Covenants and Conventions. The United Nations System can be summarized as follows:

Human rights are in a way a protection of citizens from abuse of power by their government. If a government violates human rights, enforcement at the state level will be difficult, because the perpetrator often is a state institution. It differs per country whether the judiciary has the power and the courage to condemn (representatives of) a state institution. The international system works only after the national or regional procedures have not been successful. The United Nations systems provides for a number of quasi-legal procedures and a few political procedures. These are:

5.1.   Reporting procedure (standard): the State Party has to report on the (progress or problems with) implementation of the obligations contained in the Convention. The monitoring committee (Treaty Body) gives comments and advice. When appropriate the committee can publish General Comments that apply to all States Parties.

5.2.   Complaints procedure (quasi-legal): civilians of the State Party can submit complaints to the Treaty Body, after all national procedures have been exhausted (torture, racial discrimination, civil and political rights, non-discrimination of women).

5.3.   State complaint procedure (quasi-legal): States Parties can lodge a complaint against another State Party for violations of human rights. This procedure has never been used.

5.4.   Controlling procedure (political): Special Rapporteurs can be tasked to study the performance of the State Party on his/her area of concern and report to the Human Rights Council (torture, extrajudicial executions, independence of the judiciary, racial discrimination, sexual and reproductive rights, etc.).

5.5.    Universal Periodic Review (standard): every 4 years each State Party has its performance discussed in the Human Rights Council.

5.6.   Extra-territorial procedure: a few human rights violations can be prosecuted by other States Parties (torture, extrajudicial executions, disappearances, slavery, genocide, crimes against humanity).

5.7.   Legal procedure: a few human rights violations can be prosecuted by the International Criminal Court (genocide, crimes against humanity, war crimes).

How can civilians invoke human rights for their benefit? The implementation of human rights is not a completely stately affair, and the involvement of civilians, or civil society has grown over the years. Civil society organizations can submit shadow reports to the Treaty Bodies as addition to the regular State Report. The expert members in the Committees find it increasingly important to balance the information of the government of a State Party with the information of non-governmental organizations.

Non-governmental organization can also help individuals to lodge a complaint. The State Party can then be (quasi-legally) “condemned” by the Treaty Body to refrain from actions that imply the human rights violation, to take measures to prevent these violations to happen in the future and to pay a fine to the complainant. The procedure of complaining is lengthy and very limited. One of the conditions for admissibility is that the national procedures of the individual against his government have been exhausted but not in a satisfactory way. This procedure is not available in all treaties.

Notably the ICESCR has no individual complaint procedure in force. Debate has been continuing for decades how violations of social and economic rights can be identified by a perceived lack of a universal yardstick (what is a violation of the right to work, or the right to a decent living, as these conditions differ per country and continent). It should be noted, however, that in 1984 there also was no yardstick of what, e.g. constitutes torture. By considering individual complaints the treaty Body has developed yardsticks, and still continues to do so. In 2008, after lengthy discussions an Optional Protocol (OP) has been adopted that opens the possibility to lodge “communications” with the Committee, but it needs 10 States Parties to ratify the OP before it can enter into force. Until now 3 States (Ecuador, Mongolia and Spain)[3] have ratified the OP[4].

 

7.1.   Civil-political rights versus economic, social and cultural rights

Some analysts argue that there are basic (“classic”) human rights and other human rights. The so-called classic human rights have been developed over centuries since the Era of Enlightenment (18^th century) in Europe, they argue, and therefore are classic. These include the right to life, the right to be acknowledged before the law, freedom of opinion, expression, religion and assembly, etc. They have already been codified in documents dating back to the Peace Agreement of Munster (1648, between Spain and the Netherlands), the French Declaration of the Rights of Man and the Citizen (1789) and the American Constitution (1791), based on its earlier Declaration of Rights (1774) and the Declaration of Independence (1776).  

But much earlier and outside Europe the idea has developed as well (Code of Hammurabi of Babylon, 2000 BC, Charter of Cyrus the Great of Persia, 600 BC[5]). Other types of rights have developed in other discourses, e.g. focusing on economic and emancipatory issues and on humanitarian law (The Hague Convention, 1907). A structured effort for codification of economic, social and cultural rights started after World War II and covered a broad spectre of rights.

In 1993, the United Nations Human Rights Conference in Vienna has declared all human rights that have been codified as universal, indivisible and interdependent. As an example: one cannot enjoy his freedom of opinion (a civil right) if one has not had enough education to read the papers (a social right), or if one does not have enough money to buy a paper (an economic right), or if the media are not free themselves (a political right).

7.2.   Respect – protect - fulfil

However, in the realisation the differentiation between civil and political on the one hand, and economic, social and cultural rights on the other, is useful. In measuring the implementation a distinction is made in the sense that governments should

·         Respect the rights of its nationals (civil and political rights, such as the right to participation, right to fair trial, no censorship)

·         Protect the rights of its nationals (non-discrimination);

·         Fulfil the rights of its nationals (build schools, create jobs, etc.).

For the realization and implementation of different kinds of rights this threefold is an analytical tool, and it helps identifying indicators of progress.

7.3.   Vertical versus horizontal violations

Another differentiation is based on perspective: violations of rights by a government vis-à-vis its nationals are vertical human rights violations; whereas the violations of rights by citizens towards their fellow-nationals are horizontal violations (discrimination is a case in point). The obligation of the government in horizontal human rights violations is to take measures to prosecute or prevent these violations.

7.4.   Rights holders and duty bearers

These differences in perspective are important to identify where the benefit and the responsibilities lie. For the sake of analysis it is important to know that each right has

·         rights holders, the persons whom the right refers to, and who benefit from the right when implemented;

·         duty bearers, the parties (mostly governmental) who have the duty to respect, protect or fulfil the right.

As an example: considering the right to freedom of assembly, the rights holders are the citizens who want to organize themselves in, e.g. trade unions. The duty bearers are the governmental institutions that should approve legislation that guarantees this freedom (parliament), the executive that should implement that guarantees (police and public prosecutor, and indirectly employers’ organisations) and judges who have to handle cases of banning trade unions.

And another example: in the debate on the right to development it is not clear who the rights holders are: as States claim a right to development, it seems to follow that the States are the rights holders. But what kind of development do they claim? Economic, social, or sustainable development? And who will decide what direction the development should go, the government or the population? Moreover, the duty bearers are not clearly identifiable either. Perhaps the developing countries consider rich countries as the duty bearer? Or multi-national industries that should invest in developing countries?  

7.5.   Individual rights versus collective rights

The “classic” rights are typically related to rights and freedoms of the individual person, and the Universal Declaration of Human Rights stresses that perspective in its article 1 where it says: “All human beings are born free and equal in dignity and rights”. However, the collective is not excluded, considering the preamble where it says: “Whereas it is essential to promote the development of friendly relations between nations…”. Still, collective rights are much more difficult to catch into words, just because of the above mentioned indistinctness about who are the rights holders, and who are the duty bearers. The issue arises in the debate on the right to development, but also in the Declaration on the Rights of Indigenous Peoples, and the right to a clean environment.

7.6.   Derogable and non-derogable rights

Certain rights can never be suspended, no matter how critical a situation is. The freedom of expression can be suspended during a State of War or public emergency period, and many other rights can – provided it is regulated under formal law – be temporarily limited. But a few cannot. These are the right to life, the right to be free from torture, the right to be free from genocide, the right to be free from slavery and the right to be free from retroactive application of penal law. It is often formulated as the absolute prohibition of torture, etc. This is what international human rights law says. But reality is different. States can make reservations towards non-derogable rights, if they want to maintain what has been regulated in national legislation, e.g. with regard to the death penalty.

Around the world there are different protection systems that aim at guaranteeing the enjoyment of rights. The global system of the United Nations is the most important, but the regional systems of Europe, Americas and Africa have additional value.

The first regional system was that of the Americas (1947), where agreement was reached on the American Convention on Human Rights, originating from the Organization of American States (OAS). It was also the first to be provided with a (very dynamic) complaint procedure and the quasi-legal (Inter-American) Court (in San Jose, Costa Rica) that has been decisive in the struggle against dictatorships in several countries in South America.

Later followed the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which originates from the Council of Europe (CoE) and also contains an individual complaint procedure and the European Court of Human Rights (in Strasbourg, France).

The African Charter on Human and Peoples’ Rights (1981), originating from the Organisation of African Union (OAU) is quite different in the sense that it also identifies peoples’ rights and individual’s duties. It has no provision for an individual complaint procedure and no court.

In the Arab world there have been deliberations that resulted in the Universal Islamic Declaration of Human Rights (1981), drafted in the context of the Arab League. The opening few sentences show the dilemma that has not yet been resolved: “Islam gave to mankind an ideal code of human rights fourteen centuries ago. These rights aim at conferring honour and dignity on mankind and eliminating exploitation, oppression and injustice. Human rights in Islam are firmly rooted in the belief that God, and God alone, is the Law Giver and the Source of all human rights. Due to their Divine origin, no ruler, government, assembly or authority can curtail or violate in any way the human rights conferred by God, nor can they be surrendered.”[6]

In Asia there is no regional human rights mechanism. Many years ago, NGOs have been making efforts to draft a text (and succeeded: the Asian Human Rights Charter, 1986), but the Asian governments have as yet not been able to agree on principles, let alone on details. Additional problem is that there is no regional inter-state conference or organization to support those efforts[7].

These two concepts are often taken together as the same, or at least to a large extent overlapping. It is necessary, however, to make a clear distinction between the two.

Human rights are internationally agreed norms and standards that all individuals can invoke (depending on the ratification performance of the State Party where they live. Among these rights is the right to participation (UDHR, ICCPR). But this is only one of the many rights.

Democracy is a political system that regulates the way the right to participation is respected, protected and fulfilled. The right to participation is one of the rights where all three aspects of the threefold respect – protect – fulfil apply. In a democratic system the government has to take measures that make it possible for their citizens to participate in the political decision making process. The government respects different opinions by approving the establishment of political parties. It protects the rights of citizens by regulating peaceful elections and a peaceful change of regime. And it fulfils the right to participation by having elections every four or five years according to existing law and guarantee free access to political participation for everyone.

Supportive for a democratic way of governance is freedom of the press, freedom of assembly, etc., but also will a well-educated and well-fed people (in a country where the right to education and the right to food are being fulfilled) be more inclined to participate in the democratic process than poor and ignorant people. But there are several other rights that can be respected, protected or fulfilled without a democratic kind of government. And democracy is a multi-layered condition to measure. Freedom House[8] presents as indicators, drawn from the Universal Declaration of Human Rights, representing the fundamental components of freedom, which include an individual's ability to: 

·         Participate freely in the political process;

·         Vote freely in legitimate elections;

·         Have representatives that are accountable to them;

·         Exercise freedoms of expression and belief;

·         Be able to freely assemble and associate;

·         Have access to an established and equitable system of rule of law;

·         Have social and economic freedoms, including equal access to economic opportunities and the right to hold private property.

It is clear that in violent conflicts inevitably human rights will be violated. Still, it is important to distinguish between international human rights law and international humanitarian law. The latter is a set of conventions and agreements on obligations and State Party’s duties as to how to behave in a situation of war. Even during war, when the survival of a state or a people is at stake, not everything is allowed. We quote here from the website of the International Red Cross:

“International humanitarian law (IHL) and international human rights law are two distinct but complementary bodies of law. They are both concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war.

Both international humanitarian law and human rights law apply in armed conflicts. The main difference in their application is that international human rights law allows a State to suspend a number of human rights if it faces a situation of emergency. IHL cannot be suspended (except as provided in Article 5 to the Fourth Geneva Convention).

However, a State cannot suspend or waive certain fundamental rights that must be respected in all circumstances. These include the right to life, the prohibition of torture and inhuman punishment or treatment, the outlawing of slavery or servitude, the principle of legality and the non-retroactivity of the law and the right to freedom of thought, conscience and religion.

States have a legal duty to respect and implement both IHL and human rights law. Compliance with IHL requires a state to introduce national legislation to implement its obligations, to train its military and to bring to trial those in grave breach of such law. Human rights law also contains provisions requiring a State to take legislative and other appropriate measures to implement its rules and punish violations.

IHL is based on the Geneva and Hague Conventions, Additional Protocols and a series of treaties governing means and methods of waging war such as those banning blinding laser weapons, landmines and chemical and biological weapons, as well as customary law.

International human rights law is more complex and unlike IHL includes regional treaties. The main global legal instrument is the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948. Other global treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights as well as treaties on the prevention and punishment of torture and other forms of cruel, inhuman or degrading treatment or punishment, on the elimination of racial discrimination and discrimination against women, or on the rights of the child.

Regional human rights conventions or charters have been adopted in Europe, the Americas, Africa, and the Arab region.

In situations of armed conflict, human rights law complements and reinforces the protection afforded by International Humanitarian Law”[9].

Human rights are mostly an affair of States, be it as States Parties that comply (or don’t comply) with international treaties, or be it as Governments that adopt the regulations from international treaties in their national legislation, or be it as perpetrators of human rights violations. What is the role of citizens in this respect?

Citizens are the rights holders of many rights and as such should enjoy the respect, protection and fulfilment of their rights. If they feel violated in their rights, they may invoke human rights before a court, and if not successful, they can invoke some of their rights before a Treaty Body in an individual complaint procedure.

Human rights organizations often have as their objective to support citizens in the realization of their rights. They can do this by several different strategies:

·         Legal aid: lawyers can be supportive in the procedures, nationally and internationally, to claim the citizens’ rights.

·         Shadow reporting: NGOs can draft shadow reports that complement the State Party’s reports for each of the Covenants and Conventions that the State should report on (in two- or four-year periods) to be submitted to the Treaty Body. These shadow reports often contain information from the grass roots level, and give a counterbalance to the (often euphemistically formulated) State Reports.

·         Lobby and advocacy: NGOs can try to influence their government into improved performance of human rights, improved legislation, or abolition of human rights violating laws (e.g. death penalty).

·         Awareness raising: NGOs can campaign for an improved awareness among the public as to what their rights are, so that they can better claim their rights.

·         Publicity: NGOs can publicize violations and lobby activities to inform the public of the state of affairs.

·         Documentation: NGOs can document violations and use these inputs for publicity, shadow reporting and legal aid purposes.

In many countries NGOs agree on some kind of task division, in order to be able to specialize on one or more strategies. Activists working for human rights organisations are especially vulnerable for repression from the government, as they may pose a real threat to the continuation of the regime. Since 2010, a special Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms[10] has been agreed by the General Assembly of the United Nations. As a Declaration, it has no legally binding power, but is more a moral support for human rights activists.

Since 2000, the Rome Statute has entered into force, to regulate the International Criminal Court (ICC)[11] as the judicial body for international criminal law for individual perpetrators of very serious human rights violations. States Parties have committed themselves to cooperate with the ICC, and their nationals can be subjected to the judicial proceedings. States that have not yet ratified the Rome Statute (such as the United States) refuse to let their citizens be tried before this Court. If citizens from such countries are indicted, they can be arrested if they travel to other countries and be transferred and tried in The Hague. In that case the individual will keep within his own country, or only visit friendly countries that will not have him arrested.

The International Criminal Court (ICC) should be distinguished from the International Court of Justice (ICJ)[12], also in The Hague, which is in existence since 1946, based on the United Nations Charter agreed in 1945. The International Court of Justice settles conflicts between States.

 

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